50 years of military rule
[5 June 2017] - Two days after the start of the 1967 war, Israeli military forces occupied the West Bank and imposed martial law over the Palestinian population.[i] At the time, this measure was legal under the Fourth Geneva Convention (the Convention), which permits the use of martial law in specific circumstances and on a temporary basis.[ii] To this day, the military authorities continue to rely on the Convention as the jurisdictional basis and justification for prosecuting Palestinian civilians under military law.[iii]
Once martial law was established, Major General Haim Herzog, the military commander in the West Bank at the time, started issuing military orders regulating the lives of Palestinians living in the territory. Fifty years on there are almost 1,800 orders, some of which are only available in Hebrew. The military orders cover a wide range of subjects including murder, weapon possession, membership of banned organisations, throwing objects including stones, participating in a political assembly, vigil or procession of more than 10 persons, entering Israel without a permit, traffic control orders, land usage, zoning and construction.
At the same time as martial law was imposed the military authorities also established military courts to prosecute any infractions.[iv]
As with the imposition of martial law, the legal basis for establishing the military courts is to be found in the Convention - a position also acknowledged by the military authorities to this day.[v]
Fifty years on, estimates suggest that between 775,000 - 850,000 Palestinians have been detained by the military authorities including up to 45,000 children (12-17 years inclusive).[vi]
Available evidence suggests that about half this number have been charged and prosecuted in the military courts, although it is difficult to obtain reliable data covering the full 50 years.
Since its inception, the military detention system has been dogged by allegations of systematic abuse and denial of legal rights guaranteed under the applicable law. Concerns have been raised by UN General-Secretaries, UN agencies, the US State Department, members of the US Congress, the EU, governments of the UK, Norway, the Netherlands and Australia, independent lawyer groups, as well as Palestinian an Israeli organisations.[vii]
In 2013, UNICEF published a report which concluded that "the ill-treatment of children who come in contact with the military detention system appears to be widespread, systematic and institutionalised." While some changes have been implemented, the level of complaint remains largely unchanged.
In contrast with Israel's civilian legal system, the military authorities provide no legal aid services to the accused in the military courts. Defendants in the military courts are largely dependent on lawyers provided by the Palestinian Authority, non-governmental organisations or private lawyers. These legal services are, for the most part, funded by the defendant's family, or by European and US donors and taxpayers, thereby relieving the Israeli public of this expense and helping to ensure the financial sustainability of the system. In a further measure to ensure sustainability, every Palestinian convicted in the military courts is fined, which in 2011 contributed over US $3,600,000 to the military's balance sheet.[viii]
Once convicted and imprisoned, the overwhelming majority of Palestinians serve their sentences in prisons located inside Israel in breach of article 76 of the Convention which mandates that military courts and prisons must be located in occupied territory. This requirement is considered sufficiently important that its breach is classified as a war crime under international law - be that as it may the Israeli Prison Service reports that 84 percent of Palestinian prisoners continue to serve their sentences outside the West Bank.
Since the first Israeli settlement was constructed in the West Bank in September 1967, Israel has sought to justify the policy on the grounds that the Convention has no de jure
application due to a lack of clear sovereignty over the territory prior to 1967.[ix]
While this attempt to justify settlement construction has been universally rejected,[x]
it also contradicts the arguments used by the military to justify imposing martial law and prosecuting Palestinian civilians in military courts. The danger is that this policy of cherry-picking legal obligations also undermines the credibility of the international legal order established in the aftermath of the Second World War - with potentially dangerous implications for the rule of law extending well beyond the region.
While there is no authoritative legal statement as to whether the occupation is still legal after 50 years, its duration, the construction of settlements and the acquisition of natural resources by Israel all suggest that the situation has, at some point, morphed into a de facto annexation in violation of article 2 of the UN Charter with far reaching and unpredictable consequences.
Military Order No. 2 Concerning Regulation of Authority and the Judiciary (West Bank) (7 June 1967).
Article 64 of the Fourth Geneva Convention (1949) (the Convention) - "The Occupying Power may ... subject the population of the occupied territory to provisions which are essential to enable the Occupying Power to fulfil its obligations under the present Convention." Article 66 of the Convention - "In case of a breach of the penal provisions ... the Occupying Power may hand over the accused to its properly constituted, non-political military courts."
IDF MAG Corps website (accessed on 29 May 2017), available at - https://is.gd/mOSVdU: "The IDF Military Commander operates a military justice system by virtue of articles 64 and 66 of the Fourth Geneva Convention (1949) concerning the protection of civilians during times of war."
Military Order No. 3 Concerning Establishment of Military Courts (West Bank) (7 June 1967) - "A military court and the administration of a military court shall fulfil the provisions of the Geneva Convention dated August 12, 1949 Relative to the Protection of Civilian Persons in Time of War, in all matters related to legal proceedings, and in all case of contradiction between the Order and the aforesaid Convention, the provisions of the Convention shall prevail."
Military Courts Unit (Judea and Samaria), briefing note, updated July 2015. Available at: https://is.gd/ps3Vh7
The UN estimates that between June 1967 and January 2008, 700,000 Palestinians were "imprisoned". This estimate suggests an annual average of 17,000 giving a total of 850,000 after 50 years (See: UN Special Rapporteur on the situation of human rights in the Palestinian territories occupied since 1967, Professor John Dugard, Human Rights Situation in Palestine and Other Occupied Arab Territories, 21 January 2008, A/HRC/7/17, paragraph 45). According to references cited in the IDF Law Review, Vol. 18 (2005), page 299 at page 300, in the 8 years between 1993 and 2000, 124,000 "prosecutions" were conducted in the military courts, with an annual average of 15,500. This would translated into 775,000 prosecutions since June 1967 if one assumes a constant rate for the past 50 years. According to the Annual Activity Report of the Military Courts, between 2008 and 2013, an average of 8,343 "indictments" were filed, or 417,150 indictments since 1967, assuming a constant rate. This figure does not include those detained but released without indictment - a number that is likely to be significant. In the case of children according to information provided by the Israeli military authorities pursuant to a Freedom of Information application, between 2013 and 2015 an annual average of 912 children were arrested by the military in the West Bank over the course of 3 years. Assuming a constant rate for 50 years, this would total 45,600 children.
See for example: UN Secretary General's Annual Report on Children and Armed Conflict (April 2016); UNICEF, Children in Israeli Military Detention: Observations and Recommendations (February 2013); US State Department, Country Reports on Human Rights Practices for 2016 - Israel and The Occupied Territories; and Children in Military Custody: A report written by a delegation of British lawyers on the treatment of Palestinian children under Israeli military law (June 2012).
Haaretz, "Judge, Jury and Creditor: How Palestinians Finance the Israeli Military Court System", Amira Hass, 10 March 2013. Available at: https://is.gd/TbQqOM
See for example the Israeli Government's submission to the International Court of Justice in its Advisory Opinion on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (2004), at paragraphs 90-101.
See for example UN Security Council resolution 2334 (2016).